State v. Wright , 2023 Ohio 1389 ( 2023 )

[Cite as State v. Wright, 2023-Ohio-1389.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. John W. Wise, P.J.
Plaintiff-Appellee Hon. Patricia A. Delaney, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. 22 CAA 04 0032
D'VONTAE WRIGHT
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Anders
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: April 27, 2023
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOEL C. WALKER APRIL F. CAMPBELL
ASSISTANT PROSECUTOR CAMPBELL LAW, LLC
140 North Sandusky Street, 3rd Floor 545 Metro Place South, Suite 100
Delaware, Ohio 43015 Dublin, Ohio 43017
Delaware County, Case No. 22 CAA 04 0032 2
Wise, P. J.
{¶1} Defendant-appellant D’Vontae Wright appeals his convictions and sentence
on one count of Robbery and one count of Failure to Comply with an Order or Signal of a
Police Officer following a jury trial in the Delaware County Court of Common Pleas.
Facts and procedural history
{¶2} On August 19, 2021, a Delaware County Grand Jury indicted D'Vontae
Wright on one count of Robbery, in violation of R.C. §2911.02(A)(2), a second-degree
felony, and one count of Failure to Comply with an Order or Signal of a Police Officer, in
violation of R.C. §2921.331(B), a third-degree felony. The robbery charge also contained
a repeat violent offender specification based on prior convictions for burglary and
aggravated robbery in Franklin County.
{¶3} The charges arose out of the following events:
{¶4} On August 8, 2021, Shanna Ayers, an employee of Circle K and victim of
the robbery, had been at work for a few hours at the Circle K store when she called her
manager, Heather Chapman, because she needed change for the cash register. (T. at
231). Ayers did not have access to the store safe so she needed Chapman to get the
change she needed. Id.
{¶5} Chapman had just opened the safe and was transferring money when
Appellant D’Vontae Wright ran into the Circle K, covered from head to toe. (T. at 235).
Ayers had no idea who the robber was at the time, just that he pushed her, shouted
"move," and jumped over the counter. Id. Appellant then began wrestling for the money
in the safe with Chapman, who was screaming for Ayers to call the police. Appellant took
the money and ran. Id. Ayers tried to grab Appellant as he fled the scene. (T. at 237). She
Delaware County, Case No. 22 CAA 04 0032 3
hurt her finger in the process. Id. As he was fleeing, Appellant left behind his blue hat and
a few coins. (T. at 240). Appellant then got in his car and sped off. Ayers called the police.
(T. at 244).
{¶6} Deputy Emily Williams, arriving first to the scene, noticed the blue hat along
with the trail of coins. (T. at 203-207). The deputy also noted the two females present:
Shanna Ayers and Heather Chapman (T. at 206-207). Officers then got surveillance
footage from Circle K and the adjacent business, in which they observed the masked man
get into a Dodge Dart and take off. (T. at 362-406).
{¶7} Viewing the surveillance video, the detective found it odd that the robber
came just when Chapman happened to have the safe opened, as these types of safes
usually had a ten-minute failsafe. (T. at 371). Finding it to be too coincidental, the
detective acted on his hunch and spoke with Ms. Chapman, who told the detective that
her boyfriend, D’Vontae Wright, drove her to work that day, and that the car in the
surveillance video was her Dodge Dart. (T. at 372-375). She also gave the detective her
upcoming work schedule. Id.
{¶8} Det. Williams got an arrest warrant for Wright two days later. (T. at 383).
Knowing Chapman's schedule and that Wright normally dropped Chapman off at work,
the detective formed a plan to execute Wright's arrest warrant at the Circle K that day,
August 10, 2021. Id. When Wright dropped Chapman off at work that day, the officers
watched as Wright exited the passenger side of the vehicle and as Chapman went behind
the Dart to the trunk area of the car. (T. at 386). Det. Williams then gave the green light
for Wright's takedown. However as soon as Wright realized he was about to be arrested,
he jumped in the car and took off, striking Chapman with the front of the vehicle as he
Delaware County, Case No. 22 CAA 04 0032 4
did. (T. at 387). Because Chapman had been struck, Det. Williams remained on scene
while other officers pursued Wright. Ultimately Wright was caught and charged both for
the robbery and for fleeing and alluding in this case.
{¶9} Wright requested and was granted three continuances for a number of
reasons, including having a conflict with his attorney which resulted in her withdrawal.
{¶10} A few days before Wright's fourth trial date, his attorney moved to continue
Wright's trial again. The stated reason was that he was newly appointed six weeks before
trial, and that while he had been provided discovery, he was unsure if he had complete
discovery. The trial court denied that motion.
{¶11} On the eve of Wright's fourth trial, Wright decided to plead guilty. He then
changed his mind and decided he wanted to have his trial. The State asked for a
continuance because it had let all of its witnesses go based on a good faith assurance
from defense that Wright intended to plead guilty. Wright's counsel joined in that motion,
but the trial court denied it
{¶12} The State moved the trial court to allow it to introduce Heather Chapman's
statements through Det. Williams when she failed to show up, even though she was
subpoenaed. (T. at 292). In support, the State proffered a jail call from Wright to Chapman
only the night before in which Wright attempted to persuade Chapman not to appear to
testify against him. (T. at 290). Wright's attorney did not object to the testimony but instead
asserted that Wright was not threatening in the jail calls. (T. at 291). The trial court allowed
the testimony under Evid.R. 804(b)(6). (T. at 294).
{¶13} Since Wright admitted to robbing Circle K, his trial counsel's argument at
trial was not that Wright did not commit the robbery, but rather that Wright should only be
Delaware County, Case No. 22 CAA 04 0032 5
charged with third-degree robbery. Counsel’s argument was based on the statements
presented from the employee-victim of the robbery at Wright's trial. Ayers had testified
that while Wright had pushed her, he did not harm her but only made her angry. (T. at
249). She testified her finger, which had been swollen for a few days, was fine. (T. at
250). She claimed that it was her own fault her finger was injured because she grabbed
Wright as he fled with Circle K's money. (T. at 253).
{¶14} The State argued that Wright caused harm to Ayers because he was
responsible for the foreseeable result of his crime.
{¶15} Following deliberations, the jury convicted Wright of second-degree felony
robbery and third-degree felony failure to comply with an officer's order.
{¶16} The trial court sentenced Wright to an eight (8) year minimum term on the
robbery count and a 36-month term the failure to comply offense, to be served
consecutively for an aggregate term of eleven (11) years. (Sent. T. at 1-12). The trial court
also found Wright was a repeat violent offender, but did not impose a separate sentence,
because the jury did not make the necessary findings by statute to impose a prison term
for that specification. (Sent. T. at 12). Also, because Wright was on post-release control
at the time of the offense, the trial court sentenced Wright to serve the remainder of his
post-release control term from Judge Wood's sentencing of Wright in Franklin County
Common Pleas Case No. 16CR4272. (Sent. T. at 15).
{¶17} Appellant now appeals.
Delaware County, Case No. 22 CAA 04 0032 6
Potential Assignments of Error
{¶18} Counsel for Appellant Wright has filed a Motion to Withdraw and a brief
pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967)
asserting four potential assignments of error:
{¶19} “I. THE TRIAL COURT ABUSED ITS DISCRETION BY DECLINING TO
CONTINUE WRIGHT'S TRIAL.
{¶20} “II. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO
THE DETECTIVE TESTIFYING ABOUT STATEMENTS WITNESS CHAPMAN MADE
TO HIM ON CONFRONTATION AND HEARSAY GROUNDS.
{¶21} “III. THE EVIDENCE WAS LEGALLY INSUFFICIENT AND WEIGHED
MANIFESTLY AGAINST CONVICTING WRIGHT OF SECOND-DEGREE ROBBERY
INSTEAD OF THIRD-DEGREE ROBBERY.
{¶22} “IV. THE TRIAL COURT ERRED IN SENTENCING WRIGHT.”
Law and Analysis
{¶23} In Anders, the United States Supreme Court held if, after a conscientious
examination of the record, a defendant's counsel concludes the case is wholly frivolous,
then he should so advise the court and request permission to withdraw. 386 U.S. at 744.
Counsel must accompany his request with a brief identifying anything in the record that
could arguably support his client's appeal. Id. Counsel also must: (1) furnish his client
with a copy of the brief and request to withdraw; and, (2) allow his client sufficient time to
raise any matters that the client chooses. Id. Once the defendant's counsel satisfies
these requirements, the appellate court must fully examine the proceedings below to
determine if any arguably meritorious issues exist. If the appellate court also determines
Delaware County, Case No. 22 CAA 04 0032 7
that the appeal is wholly frivolous, it may grant counsel's request to withdraw and dismiss
the appeal without violating constitutional requirements, or may proceed to a decision on
the merits if state law so requires. Id.{¶24} By Judgment Entry filed January 23, 2023, this Court noted that counsel
had filed an Anders brief and had indicated to the Court that he had served Appellant with
the brief. Accordingly, this Court notified Appellant via Certified U.S. Mail that he “may
file a pro se brief in support of the appeal within 60 days of the date of this entry.”
{¶25} Appellant has not filed a pro se brief
{¶26} We find Appellant’s counsel in this matter has adequately followed the
procedures required by Anders.
I.
Continuance
{¶27} The grant or denial of a continuance is a matter entrusted to the broad,
sound discretion of the trial court. State v. Unger, 67 Ohio St.2d 65, 423 N.E.2d 1078(1981). In order to find an abuse of discretion, we must determine whether the trial court's
decision was unreasonable, arbitrary or unconscionable and not merely an error of law or
judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).
{¶28} In reviewing a trial court's denial of a motion for a continuance, an appellate
court should consider the following factors: (1) the length of the delay requested; (2)
whether other continuances have been requested and received; (3) the inconvenience to
witnesses, opposing counsel, and the court; (4) whether there is a legitimate reason for
the continuance; (5) whether the defendant contributed to the circumstances giving rise
Delaware County, Case No. 22 CAA 04 0032 8
to the need for the continuance; and other relevant factors, depending on the unique facts
of each case. Unger at 67, 423 N.E.2d 1078.
{¶29} There are no mechanical tests for deciding when a denial of a continuance
is so arbitrary as to violate due process. The answer must be found in the circumstances
present in every case, particularly in the reasons presented to the trial judge at the time
the request is denied.” Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 1 L.Ed.2d 921(1964).
{¶30} We have carefully examined the record in this case and conclude that the
trial court lawfully exercised its discretion in refusing to grant the continuance. Most
notably, Appellant had been previously granted numerous continuances. Further, the
request was made the day of trial.
{¶31} Upon review, we find no abuse of discretion in denying the request for a
continuance.
II.
Ineffective assistance of counsel
{¶32} To succeed on a claim of ineffectiveness, a defendant must satisfy a two-
prong test. Initially, a defendant must show that trial counsel acted incompetently. See,
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). In assessing such claims,
“a court must indulge a strong presumption that counsel's conduct falls within the wide
range of reasonable professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action ‘might be considered
sound trial strategy.’ ” Id. at 689, citing Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct.
158 (1955).
Delaware County, Case No. 22 CAA 04 0032 9
{¶33} “There are countless ways to provide effective assistance in any given
case. Even the best criminal defense attorneys would not defend a particular client in the
same way.” Strickland, 466 U.S. at 689. The question is whether counsel acted “outside
the wide range of professionally competent assistance.” Id. at 690.
{¶34} Even if a defendant shows that counsel was incompetent, the defendant
must then satisfy the second prong of the Strickland test. Under this “actual prejudice”
prong, the defendant must show that “there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694.
{¶35} Upon review, we see no indication in the record that counsel was ineffective.
While counsel references the introduction of certain hearsay statements by Detective
Chapman with regard to his interview with witness Chapman, we find no unfair prejudice
to Appellant as a result as such statements, especially in light of the evidence presented
by the State that Appellant caused Chapman’s unavailability. We find no hearsay
violations or Confrontation Clause violations.
{¶36} Further, we do not find that the outcome of the trial would have been
different without said testimony as the State also presented DNA evidence, Appellant’s
admission to having committed the crimes, and video evidence linking him to the crimes.
{¶37} Based on the record, we do not find the decision by trial counsel to not
object to such statements to rise to the level of incompetence, nor do we find that the
outcome of the trial would have different.
Delaware County, Case No. 22 CAA 04 0032 10
III.
Manifest weight and sufficiency of the evidence
{¶38} Counsel has also proposed an assignment of error that challenges the
sufficiency of the evidence as well as the manifest weight of the evidence.
{¶39} In reviewing a challenge to the sufficiency of evidence, the relevant inquiry
is whether, after viewing the evidence in a light most favorable to the prosecution, any
rational trier-of-fact could have found the essential elements of the crime proven beyond
a reasonable doubt. State v. Smith, 80 Ohio St.3d 89, 113, 684 N.E.2d 668 (1997). In
making that determination, appellate courts will not weigh evidence or assess credibility
of the witnesses. State v. Walker, 55 Ohio St.2d 208, 212, 378 N.E.2d 1049 (1978). State
v. Perez, 6th Dist. Wood No. WD-17-017, 2018-Ohio-1956, ¶ 20.
{¶40} In a manifest weight challenge, we must determine whether the greater
amount of credible evidence supports the conviction. Eastley v. Volkman, 132 Ohio St.3d
328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 12. This court sits as if the “thirteenth juror” and
must review the record, weigh the evidence and all reasonable inferences drawn from it,
consider the witnesses' credibility and decide, in resolving any conflicts in the evidence,
whether the trier-of-fact clearly lost its way and created such a manifest miscarriage of
justice that the conviction must be reversed and a new trial ordered. See State v. Leech,
6th Dist. Lucas No. L-13-1156, 2015-Ohio-76, ¶ 32, citing State v. Martin, 20 Ohio App.3d
172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶41} Upon review, we find that under the law of causation, Appellant is
responsible for any foreseeable physical harm caused by his actions. The State herein
presented testimony from Shanna Ayers that her finger was injured when she attempted
Delaware County, Case No. 22 CAA 04 0032 11
to stop Appellant from fleeing from the store with the stolen cash, thereby elevating the
robbery charge to a second-degree felony.
{¶42} We find there was sufficient evidence presented to the jury wherein a
rational trier-of-fact could have found the essential elements of second-degree felony
robbery, and we find no indication that the jury lost its way and created a manifest
miscarriage of justice.
IV.
Sentencing
{¶43} This Court reviews felony sentences using the standard of review set forth
in R.C. § 2953.08. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d
1231, ¶22; State v. Howell, 5th Dist. Stark No. 2015CA00004, 2015-Ohio-4049, ¶31.
Subsection (G)(2) sets forth this Court's standard of review as follows:
(2) The court hearing an appeal under division (A), (B), or (C) of this
section shall review the record, including the findings underlying the
sentence or modification given by the sentencing court.
The appellate court may increase, reduce, or otherwise modify a
sentence that is appealed under this section or may vacate the sentence
and remand the matter to the sentencing court for resentencing. The
appellate court's standard of review is not whether the sentencing court
abused its discretion. The appellate court may take any action authorized
by this division if it clearly and convincingly finds either of the following:
(a) That record does not support the sentencing court's findings
under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of
Delaware County, Case No. 22 CAA 04 0032 12
section 2929.14, or division (I) of section 2929 of the Revised Code,
whichever, if any, is relevant;
(b) That the sentence is contrary to law.
{¶44} “Clear and convincing evidence is that measure or degree of proof which is
more than a mere ‘preponderance of the evidence,’ but not to the extent of such certainty
as is required ‘beyond a reasonable doubt’ in criminal cases, and which will produce in
the mind of the trier of facts a firm belief or conviction as to the facts sought to be
established.” Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three
of the syllabus.
{¶45} “A sentence is not clearly and convincingly contrary to law where the trial
court ‘considers the principles and purposes of R.C. 2929.11, as well as the factors listed
in R.C. 2929.12, properly imposes post release control, and sentences the defendant
within the permissible statutory range.’ ” State v. Morris, 5th Dist. Ashland No. 20-COA-
015, 2021-Ohio-2646, ¶90, quoting State v. Dinka, 12th Dist. Warren Nos. CA2019-03-
022 and CA2019-03-026, 2019-Ohio-4209, ¶36.
{¶46} Here, Appellant was convicted of second-degree felony robbery and third-
degree felony failure to comply.
{¶47} Initially, we note that Appellant's eight (8) year sentence for a second-
degree felony offense and 36-month sentence for a third-degree felony offense are within
the statutory range. R.C. § 2929.14(A)(2)(a) - (3)(a).
{¶48} A review of the record shows that clear and convincing evidence supports
the trial court's findings under R.C. § 2929.11 and R.C. § 2929.12. The trial court heard
Delaware County, Case No. 22 CAA 04 0032 13
Appellant’s allocution, considered the facts in this case and considered Appellant’s prior
criminal history.
{¶49} Upon review, we find the sentence imposed is not clearly and convincingly
contrary to law. The sentences are within the statutory range for felonies of the second
and third degree, and the trial court considered the R.C. § 2929.11 and R.C. § 2929.12
factors.
{¶50} We therefore find no merit to these proposed assignments presented by
appellant.
Conclusion
{¶51} After independently reviewing the record, we agree with counsel's
conclusion that no arguably meritorious claims exist upon which to base an appeal.
Hence, we find the appeal to be wholly frivolous under Anders, grant counsel's request to
withdraw, and affirm the judgment of the Delaware County Court of Common Pleas.
By: Wise, P. J.
Delaney, J., and
Baldwin, J., concur.
JWW/kw 0425